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University of Otago Law Theses and Dissertations |
Last Updated: 15 September 2023
Making sense of substantive legitimate expectations in New Zealand Administrative Law
Stuart Angus McGilvray
A thesis submitted for the degree of LLB (hons)
at the University of Otago, Dunedin, New Zealand.
12th October 2007
Acknowledgments
I am indebted to all members of the Faculty of Law at Otago for their support and encouragement throughout the last four years. Particular credit is due to Professor Stuart Anderson for his comments and suggestions in the process of writing this thesis and for showing in Advanced Public Law how some sense can be made of this complicated area. Thanks are also due to Professor John Dawson who, first in second year Public Law and later in Jurisprudence and Treaty of Waitangi, showed me that at times the law can in fact be interesting. Finally I would like to acknowledge my longsuffering friends and family, particularly Fiona.
Contents
Introduction
Many years ago Jeremy Bentham noted the peculiar capability of mankind to entertain expectations, yet the concept remained largely obsolete in the law:
It is a proof of great confusion in the ideas of lawyers, that they have never given any particular attention to a sentiment which exercises so powerful an influence upon human life. The word expectation is scarcely found in their vocabulary. Scarce a single argument founded upon that principle appears in their writings. They have followed it, without doubt, in many respects; but they have followed it by instinct rather than reason. If they had known its extreme importance they would not have failed to name it and to mark it, instead of leaving it unnoticed in the crowd.1
Perhaps due to the waning influence of strict formalism, which would deny legal protection for expectations outside of contract, private law has come to recognise the enforceability of expectations in a number of areas. A driving factor has been the need to protect the autonomy of the individual by ensuring legal certainty, a value supported by both formal and substantive conceptions of the rule of law.2 In the different theoretical framework of public law, however, the presence of the wider public as a third party meant that the use of expectations as the basis of an argument was for a long time rejected. The case was concisely put by Rowlatt J in Rederiaktiebolaget Amphitrite v R.3 Where the conduct of the Executive amounts to “merely an expression of intention to act in a particular way in a certain event”, it is not open to a court to hold the Executive to the expectation the other party entertained.4 That is because “...it is not competent for the Government to fetter its future executive action, which must necessarily be determined by the needs of the community when the question arises”.5 The traditional view that the proper concern of judicial review is with the process and not the actual merits of a decision also ostensibly prevented courts from enforcing expectations, “The merits of administrative action, to the extent that they can be distinguished from legality, are for
1 Jeremy Bentham, Principles of the Civil Code, reproduced in: CB MacPherson, Property, Mainstream and Critical Positions (Blackwell, 1978), at 51
2 Paul Craig, “Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework”, (Autumn 1997) Public Law 467, at 469 and 479
4 Ibid at 503
5 Ibid at 503
the repository of the relevant power and, subject to political control, for the repository alone”.6
Never one to be constrained by precedent, Lord Denning recognised the injustice this was apt to cause and in several cases applied promissory estoppel7 against public authorities to uphold expectations they had created. Following several years of uncertainty, the English Courts have recently affirmed that expectations may be enforceable in the right case, albeit by the different doctrine of legitimate expectation.
New Zealand appears to be on verge of accepting this principle. This thesis seeks to show that there is no impediment to it doing so, whether the expectation is characterised as procedural or substantive. The tendency to fit expectations into the dichotomy of procedural or substantive seems to have unnecessarily retarded the development of the law and calls for a need to be semantically clear. In the former the expectation is that an authority will afford certain procedural rights in the course of making a decision and in the later the expectation is of some substantive outcome or benefit other than a procedural right. Confusingly, the same dichotomy manifests itself in the remedy a court could grant. When there is an expectation of a substantive benefit or outcome the court can either procedurally protect the expectation, by which specific procedural rights are granted, or substantively protect it, by which the court itself and not the decision maker ultimately decides whether the denial of the expectation is lawful. No doubt influenced by the perception of their proper role, the courts have readily accepted the enforceability of procedural expectations and by natural justice have procedurally protected substantive expectations. The focus of this dissertation is on the controversial issue of substantive protection for substantive expectations in New Zealand public law.
The jurisprudence on legitimate expectations is vast and what follows by no means purports to be a comprehensive analysis of all the issues which would take far more words and time than is currently available. Rather, the focus is on to what extent New Zealand courts have accepted the substantive dimension of legitimate expectations
6 Attorney General (NSW) v Quin [1990] 93 A.L.R. 1, per Brennan J at p25
7 Which he himself revived in Central London Property Trust Ltd v. High Trees House Ltd (1946) [1956] 1 All E.R. 256
affirmed in the English case of R v North East Devon Health Authority, ex parte Coughlan,8 secondly, whether they should adopt this principle given the theoretical objections that have been presented, and thirdly how this principle would apply in practice. Chapter One introduces the ways in which legitimate expectations have been used and to what extent New Zealand courts have accepted these arguments. This will reveal that it is unclear whether or not an applicant can actually enforce an expectation of a substantive benefit, as is how courts should approach such cases. It is the opinion of this author that the courts should, in the right case, enforce expectations of a substantive benefit. The second chapter discusses the theoretical justifications put forward for this proposition and assess the objections that have been offered, ultimately concluding that they are not strong enough to completely deny the existence of such a principle. Having established that, Chapter Three suggests how a New Zealand Court might approach such cases by drawing on the English jurisprudence where the concept is relatively well entrenched.
8 [1999] EWCA Civ 1871; [2000] 2 WLR 622
Chapter One:
The different uses of a “legitimate expectation”
It is necessary to identify the different ways in which legitimate expectations can be marshalled and how far New Zealand courts have accepted such arguments to establish what this thesis is not about. By creating separate compartments for the law some courts have accepted one application of legitimate expectation and denied another, when it is arguable that “in truth, different applications represent a single principle or at least interlocking principles”.9 Courts throughout the Commonwealth have accepted granting procedural protection for expectations. Granting substantive protection for expectations is more controversial and, following a brief review of procedural protection, is the focus of this thesis. It seems that those in New Zealand preferring a restrictive approach have relied on the Australian case of Attorney General (NSW) v Quin, 10 where it was held that legitimate expectations do not generate substantive rights. Judges in favour of a more expansive approach cite the various English cases which have accepted that expectations can be substantively protected. The views of commentators in New Zealand are equally divided on the issue. Since the higher courts for New Zealand have offered no definitive guidance, the question becomes; which approach should prevail?
Procedural protection of expectations
Legitimate expectations and natural justice
Lord Denning can be attributed with the first usage of the phrase “legitimate expectation” in the case of Schmidt v Secretary of State for Home Affairs.11 Although obiter, he suggested that the applicants’ “legitimate expectation” of being allowed to remain until the expiry of their visas “ought” to entitle them to make representations
9 Laws LJ in Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363. At para 49, he also alludes to the “lure of over classification” in this field.
10 [1990] 93 A.L.R. 1, later affirmed in Re Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] 195 A.L.R. 502
11 [1968] EWCA Civ 1; [1969] 1 All ER 904
to a decision maker who took steps to remove them before that date. Lord Denning was later attributed with having said that: “it came out of my own head and not from any continental or other source”.12
Clearly the expectation in Schmidt was of a substantive benefit, namely being permitted to remain in the country for the time specified on the visa. It is important to note that it is not the procedure which was legitimately expected; rather the procedure is afforded “because that legitimate expectation is of an ultimate benefit which is in all the circumstances entitled to the protection of the procedure”.13
This use of legitimate expectation is clearly linked to the audi alteram partem principle of natural justice. For example, in Daganayasi v Minister of Immigration14 Cooke J held that applicant’s legitimate expectation that the relevant statutory test was fulfilled justified the court holding that the substance of prejudicial reports should have been disclosed to that applicant so as to enable her to make representations on it. Hence, a person with “less-than-rights” might be afforded procedural protection if their legitimate expectation was of an interest sufficient to warrant the courts intervention. In this way the interest itself generates the procedural protection.
Courts in New Zealand have accepted this use of legitimate expectation in several cases15 and in this sense legitimate expectation arguments are not controversial.
Legitimate expectation of procedural rights
Paul Craig notes that in cases of the like discussed above, the focus is on the nature of the interest which is infringed,16 which is common to natural justice arguments. As he goes onto state; “In some other cases however the primary foundation for the
12 C. Forsyth, “The Provenance and Protection of Legitimate Expectations” [1988] C.L.J. 238, at 241 note 12
13 Attorney General (NSW) v Quin [1990] 93 A.L.R. 1, per Dawson J at 40
14 [1980] 2 NZLR 130, at 145
15 See, for example Fowler & Roderique Ltd v Attorney-General [1987] NZCA 92; [1987] 2 NZLR 56 (CA) which
concerned a reasonable expectation that a licence would be renewed. The court held this entitled the holder to make submissions to the decision maker before any decision was made. See also Bradley v Attorney-General [1988] NZHC 21; [1988] 2 NZLR 454, Smellie J stated: “it is clear law that if Mr Bradley had a legitimate expectation then he was entitled to a fair hearing before that expectation was denied to him” 16 P.P Craig, “Legitimate Expectations: A Conceptual Analysis” (Jan 1992) 108 Law Quarterly Review 79, at 81
application of procedural rights will rest on the conduct of the public body”. 17 Generally in these cases the conduct of the public body will take the form of some sort of representation. This kind of case is exemplified by the decision of the Privy Council in Attorney General of Hong Kong v Ng Yuen Shui.18 The applicant was an illegal entrant and became liable to removal from Hong Kong following a change in governmental policy. A senior official had announced that before any such persons would be removed they would be interviewed and their case decided on its merits. When he was subsequently issued with a removal order without the opportunity of being interviewed, the applicant sought judicial review. The Board stated:
... when a public body has promised to follow a particular procedure, it is in the interests of good administration that it should act fairly and implement its promise, so long as implementation does not interfere with its statutory duty.19
In this species of case it is the representation by a public authority which is the source of the applicants’ procedural rights and in a sense the protection can be seen as substantive because the citizen receives what they were led to expect. Courts in New Zealand have accepted this use of legitimate expectation.20
Conclusion on procedural protection
Courts throughout the Commonwealth21 have accepted that a legitimate expectation can be procedurally protected. In each case discussed above the foundation for the protection is different; either the interest itself, or some conduct by a public authority generates it. There may be good reason not to afford the procedural protection and the courts feel they are apt to decide what will constitute good reason in this context.22 Furthermore, procedural rights will not be extended to an applicant where to do so
17 Ibid at 81
18 [1983] 2 A.C. 629
19 Ibid at 638
20 In Te Heu Heu v Attorney-General [1999] 1 NZLR 98 Robertson J confirmed that if through
conduct or assurances a public body created an expectation of consultation which was not in fact afforded, this would be a ground for relief. See also Air Nelson Ltd v Minister of Transport [2006] NZHC 1551; [2007] NZAR 266 where it was stated:
“A legitimate expectation will lead to a duty to consult if the public authority has expressly promised to consult or if it has a regular practice of consulting”.
21 In addition to New Zealand and England; for example in Australia see Attorney General (NSW) v
Quin [1990] 93 A.L.R. 1, and in Canada see Old St. Boniface Residents Association Inc v The City of Winnipeg and the St. Boniface-St. Vital Community Committee [1990] 3 S.C.R. 1170
22 See for example New Zealand Association for Migration and Investments Inc v Attorney-General
[2006] NZAR 45, at para 186 where the court held that it was justifiable for the Minister to withhold dates of when a new policy would come into operation because she was minded to avoid a rush of applications seeking the advantage of the old policy
would conflict with an authority’s statutory duty, since this would be ultra vires.23 Nonetheless, the process of decision making is something courts feel they are particularly apt to asses on judicial review, as Richardson J stated in Petrocorp Exploration Ltd v Minister of Energy,24 “...the proper concern of administrative law is with the process of decision making”. This pronouncement also foreshadows part of the reason courts are reluctant to accept that legitimate expectations can generate substantive protection, since that would seem to project them into an assessment of the ‘merits’.
Substantive protection: Precedents
Substantive protection expectations based on “informal” representations
Courts in England have recognised that in certain cases an assurance which creates an expectation of a substantive benefit can be enforced in judicial review proceedings. In R v North East Devon Health Authority, ex parte Coughlan25 the Court of Appeal stated:
Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. 26
Essentially what is involved in this type of case is a “weighing the requirements of fairness against any overriding interest relied upon for the change of policy”,27 which may be essentially a test of proportionality28. In the case before the Court a severely disabled patient had been assured that, if she agreed to move, her new residence would be a home for life. The responsible authority subsequently decided to close down that residence, essentially for financial reasons. The Court held that the denial of the expectation was an ‘abuse of power’ warranting its intervention.
23 Ng Yuen Shui, supra n 18
24 [1991] 1 NZLR 1, at 46
25 [1999] EWCA Civ 1871; [2000] 2 WLR 622
26 Ibid at para 57
27 Ibid at para 57
28 Paul Craig and Soren Schonberg. "Substantive legitimate expectations after Coughlan” (Winter 2000) Public Law 684, at 699. See also Mark Elliot, “Legitimate Expectations and the Search for Principle:
Reflections on Abdi & Nadarajah”, (2006) Judicial Review 281, at 285
The substantive benefit which was expected in Coughlan was that Miss Coughlan would be able to stay in Marsdon House for life. Another example of a substantive benefit which may be expected is that a ‘policy’ will apply to a discretionary power which is to be exercised in respect of an individual.29 In R v Secretary of State for the Home Department, ex parte Asif Mahmood Khan30 there was a representation in a letter to the applicant about the policy according to which the discretionary power in question, whether leave would be granted to adopt an overseas child, was to be exercised. By making his decision on a basis not included in the represented policy the applicant was led to expect would apply, the Court of Appeal held the Minister had acted unfairly and unreasonably.
These two cases are provided here as examples of the general principle of substantive protection for substantive expectations and to illuminate the discussion of how far New Zealand Courts have recognised this principle. A fuller discussion of the English jurisprudence, and what (if any) difference there is between “policy” and other cases, follows in Chapter Three.
The principle of irrevocability
The type of cases discussed above concern what might be called ‘informal representations’, short of actual decisions. There is another line of precedent concerning ‘decisions’ and whether they can be revoked once issued. Although the language is different, it is clear the same justifications inform this “principle of irrevocability”,31 and the basic structure for assessing such problems is very similar to legitimate expectation cases.
The classic English example is provided by Re 56 Denton Road, Twickenham, Middlesex.32 In November 1940 the applicant’s house suffered severe damage as a
29 Whilst this could be argued to be a procedural benefit, the better view is that it is substantive, see the comments of Laws LJ in R v Secretary of State for Education and Employment, ex parte Begbie [1999] EWCA Civ 2100; [2000] 1 WLR 1115, at para77. See also Melissa Poole, “Legitimate Expectation and Substantive Fairness: Beyond the Limits of Procedural Propriety” (1995) N.Z. Law Rev. 426, at 431 who states that “to say that a person has a legitimate expectation about the application of a substantive policy goes beyond the realm of the procedural protections aspect of administrative law”
30 [1984] EWCA Civ 8; [1984] 1 WLR 1337
31 See Soren Schonberg, Legitimate Expectations in Administrative Law (Oxford University Press, 2000), 14
result of German bombing and shortly after was completely demolished. The War Damage Commission had to establish the quantum the applicant was entitled to as a result of her home being demolished. The applicant was informed she would receive the greater of two possible amounts via a letter from the regional manager of the Commission. Six months later the Commission wrote again, this time stating that “it has been decided to revert to [the lesser amount]”. Eight months after that the Commission issued a “Notice of Determination” confirming what was communicated by the prior letter. Vaisey J relied on Livingstone v Westminster Co33 and Robertson v Minister of Pensions34 for the proposition that:
[any] such decision or determination made and communicated in terms which are not expressly preliminary or provisional is final and conclusive, and cannot, in the absence of express statutory power or the consent of the person or persons affected, be altered or withdrawn by that body ... the contrary view would introduce a lamentable measure of uncertainty.35
The court issued a declaration that stated the defendants must be deemed to have determined the quantum in the manner originally communicated. This principle was acknowledged, although not followed in Rootkin v Kent County Council.36
Although Canadian courts have rejected a role for legitimate expectation outside of procedural fairness,37 there is support for the principle of irrevocability in the majority judgement of the Supreme Court in Mount Sinai Hospital Centre v Quebec (Minister of Health and Social Services).38 There had been a representation by the Minister to the Centre that once they effected a move to Montreal the required permit to practice would be issued. The Minister subsequently declined to issue the permit. While the facts of the case seemed tailor made to adopt a Coughlan type analysis; neither the majority nor the minority, who both upheld the applicants claim, did so.39 Bastarche J,
35 Re 56 Denton Road, supra n 26 at 56-57
36 [1981] 2 All ER 227, see also Thrasyvoulou v Secretary of State for the Environment [1990] 2 A.C 273 where the similar res judictata doctrine was affirmed
37 See Old St. Boniface Residents Association Inc v The City of Winnipeg and the St. Boniface-St. Vital
Community Committee [1990] 3 S.C.R. 1170, Reference re Canada Assistance Plan [1991] 2 S.C.R 525 and Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817. In general see David J Mullan, Administrative Law (Toronto : Irwin Law, 2000), Chapter Nine
39 Genevieve Cartier suggests that nonetheless “the values and principles that inform the UK version” undoubtedly influenced the decision of both the majority and minority, see “A Mullian Approach to the
Doctrine of Legitimate Expectations: Real Questions and Promising Answers”, in Inside and Outside
writing for the majority, characterised the situation not as a ‘renewal’ of the permit, but rather as the issuing of a new permit. The relevant section stated simply that the Minister shall issue a permit if he considers that it is in the public interest. The Judge stated that the Minister had exercised his discretion under this section when he made a representation that the modified permit requested by the centre would be issued, and in reliance on that caused the Centre to move to Montreal. In other words, having decided it was in the public interest, the relevant decision had been made:
The actual granting of the permit was deferred until the move to Montreal was made ... This does not mean that in a different set of circumstances the Minister could not, based on overriding policy concerns, in exceptional circumstances, reverse a prior discretionary decision.40
Although the court acknowledged that overriding policy considerations could sometimes justify departure from the ‘decision’, since the Minister had offered no valid reason the original decision had to stand. Mount Sinai is an example of how the definition of a ‘decision’ can sometimes be stretched to include something which is actually only a promise of a decision.
Substantive protection in New Zealand
The holder of a substantive expectation in New Zealand will usually qualify for some form of procedural protection. This thesis now considers how the courts received the precedents establishing substantive protection set by Coughlan, Khan and Denton Road.
Substantive protection of expectations based on “informal” representations
In Challis v Destination Marlborough Trust Board Inc41 Wild J held that since on the material before the court the applicant could not establish a legitimate expectation of obtaining a renewal of their contract, he did not have to decide whether in New Zealand a court could enforce a legitimate expectation of a substantive outcome.42 Despite this, His Honour went onto state that there was no estoppel available in public
Canadian Administrative Law; Essays in Honour of David Mullan (University of Toronto Press, 2006), at p 201-202
40 Mount Sinai, supra n 39 at 333
42 Ibid at para 103
law since “None of these estoppel principles can properly achieve anything in the public law arena that cannot now be achieved by invoking breach of a legitimate expectation”.43 It is implicit in this statement that a legitimate expectation could in fact be invoked to prevent a public body from resiling from representations inducing a substantive expectation. The explanation for this apparent contradiction with his earlier statement, that he did not have to decide whether a court could enforce a substantive expectation, lies in the fact that for the later proposition His Honour relied on the English case of R v East Sussex County Council ex Parte Reprotech (Pebsham) Ltd.44 In that case the House of Lords noted that following the exposition of English law on legitimate expectations in Coughlan there was no need to rely on the private law concept of estoppel.45 Challis cannot, therefore, be seen as clear authority for the principle of substantive protection.
The concept of a substantive legitimate expectation was used to reinforce the courts conclusion in Aoraki Water Trust v Meridian Energy Ltd,46 thereby offering muted support for the principle. The applicant applied for water rights that had been fully allocated to Meridian but the court held that Meridian’s consents operated as a legal constraint, in part because “the latter [Meridian] must reasonably expect to proceed with planning and investment on the basis that the consent authority will honour its commitment”.47
In Lawson v Housing New Zealand, Minister of Housing and the Minister of Finance 48 Williams J noted the controversy over whether legitimate expectations could be invoked to challenge the merits of a decision and seemed to favour the approach of the Australian High Court in Attorney General (NSW) v Quin49. His Honour held that the “robust rejection of the notion that legitimate expectation will result in a favourable outcome” in that case was a matter to be “kept in mind”.50
43 Ibid at para 105
44 [2002] UKHL 8; [2002] 4 All ER 58
45 The roots of substantive protection of expectations in estoppel are considered in more detail in Chapter Two.
47 Ibid at para 39-42
48 [1996] NZHC 1528; [1997] 2 NZLR 474
50 Lawson, supra n 42 at 489
Similarly, reference was made to comments in Taylor51 to the effect that “legitimate expectation of itself cannot be invoked as a challenge to the substance or merits of the decision”. His Honour, however, did not reach a concrete conclusion on the position in New Zealand since, like in Challis, it could not be shown that the applicant entertained a valid expectation.
In Lumber Specialties Ltd v Hodgson52 the applicants’ alleged they had a legitimate expectation that beech trees would continue to be available for harvest on a sustainable basis. Hammond J rejected the proposition that a legitimate expectation of a substantive benefit could be enforced, “At least as the law presently stands, the law [sic] does not recognise any such concept”.53 The precedent relied on that proposition was Quin and the same passage cited in Lawson was cited here.
Quin was also referred to in Travis Holdings Ltd v Christchurch City Council.54 Tipping J held that since the concept of legitimate expectation is directed primarily to “procedure and not outcome”,55 the applicant could have no expectation that an issue would be decided in a particular way.
Coal Producers' Federation of New Zealand Incorporated v Canterbury Regional Council 56 concerned a proposal to ban the use of coal in domestic heating appliances. The Coal Producers’ Federation claimed that they had a legitimate expectation, based on two documents issued by the council, that a proper opportunity to be heard would be accorded them before any decision was made. Chisholm J concluded that the legitimate expectation, coupled with the nature of the power in question and how it will affect the applicants’ interests, overwhelmingly justified the imposition of procedural rights in favour of the Federation. Although obiter, His Honour observed, again with reference to Quin, that where the court enforces a legitimate expectation it will take the form of procedural protection and that substantive protection requiring
51 GDS Taylor, Judicial Review: a New Zealand perspective (Butterworths, 1991), p 256
53 Ibid at para 137
54 [1993] NZHC 2222; [1993] 3 NZLR 32
55 Ibid at 50
the public authority to exercise their discretion in a particular way will not be afforded.57
Staunton Investments Ltd v Chief Executive Ministry of Fisheries 58 falls within the precedent of the “policy” type cases exemplified by ex parte Khan. Here the applicant claimed to have a legitimate expectation that a particular formula, arrived at following consultation, would be applied in respect of their payments. Gendall J first considered whether the formula itself was a mandatory relevant consideration. He held that the formula was a guideline which could not be applied in every case regardless of the circumstances59 and that how proper regard was to be given to the formula was a matter for the discretion of the Ministry, reviewable only for unreasonableness.60 He then went onto consider the legitimate expectation argument, which essentially covered the same ground. In reviewing the law on legitimate expectation His Honour noted, “Historically, breach of legitimate expectation gave rise to a procedural remedy only and one could not have (or rarely have) a legitimate expectation of a substantive result or outcome”.61 Without any real discussion, Gendall J, seemingly borrowing from Coughlan, then stated that the root of the doctrine has to be “abuse of power so that it would be unfair to permit a Public Authority to depart from its promulgated policy or promise”.62 This suggests that an applicant can obtain a substantive result or outcome via legitimate expectation; indeed this much is attributed to the judgement in the head note to the case, though it is not clear this was a finding. His Honour then treated the expectation that the policy would apply as a mandatory relevant consideration, one which may be disregarded if particular circumstances arise which, in the Ministers opinion, suggest that the policy should not apply.63 Ultimately the same result is reached as was under the alternative ground discussed above. It is suggested in Chapter Three that there are shortcomings in treating an expectation as a mandatory relevant consideration. It is only likely to avail the applicant when, like in
57 Ibid at 272, although not necessary to determine the case, this analysis of Quin can be found in the head note of the report.
59 Ibid at para 20
60 Ibid at para 21
61 Ibid at para 28, we might question His Honour’s conclusion, it is clear that an applicant can have a substantive expectation, what is unclear is whether it is to be procedurally or substantively protected 62 Ibid at para 29
63 Ibid at para 31
Tay v Attorney General, 64 the ultimate decision maker was not aware of the expectation and the detriment suffered by the applicant in reaching the decision. It cannot address a claim that insufficient weight was given to the expectation.
Northern Roller Milling Co Ltd v Commerce Commission 65 is a similar case. The applicant had obtained an assurance as to how interest would be calculated in 1986 from the responsible authority. The responsible authority then changed to the Commerce Commission, who represented that the existing policies would remain unaltered and continue to apply. Subsequently the Commission issued a determination in relation to the applicants’ affairs which departed from the prior basis upon which interest was calculated. Gendall J noted the nexus between substantive unfairness and legitimate expectations before reviewing the authorities. He observed that in Quin although Mason CJ was reluctant to accept that substantive results could flow from legitimate expectations, he did go onto say that if there was no detriment to the public interest substantive remedies could be granted. His Honour went on:
There is authority then for the proposition that where a decision-making authority has indicated the criteria which will be taken into account in arriving at that decision, but proceeds on some other basis, the decision may be flawed for misdirection or even for irrationality ... The difficulty [presented by the no-fetter principle] may to some extent be met if indications given by the authority prior to the making of a formal decision can themselves be regarded as
a preliminary decision.66
The final italicised sentence seems to be alluding to the principle of irrevocability. Gendall J set aside the decision of the Commission on the basis of a failure to take into account the state of affairs it had induced and which were relied on by the applicant, thereby treating the expectation as a mandatory consideration. An order was made to reconsider the matter. Nothern Roller is the clearest precedent for the principle of substantive protection of expectations, although it is not clear what the result would have been had the authority given full consideration to the expectation in reaching its decision.
Fisher J took an expansive approach in E v Attorney General,67 although in this case the applicants’ neither relied on, nor even knew of, the policy in question. The
66 Ibid at p 754
expectation was that in determining their applications for temporary visas, the Immigration Service would apply a presumption that a temporary permit would be granted to a refugee claimant in the absence of special factors making detention necessary. Fisher J held that it was not necessary to confine legitimate expectations to procedural as opposed to substantive expectations.68 Nor need reliance be shown where, as here, the expectation was based on material published by the government to the public at large, since there is a public interest in holding the government to statements of how it intends to act.69 His Honour granted substantive protection for this expectation by quashing the decisions and directing that they be made again, this time according to the presumption which had been established. This case would have been a clear authority for the proposition that legitimate expectations can generate substantive results, but, in Attorney-General v E 70 the Court of Appeal reversed the decision. It held simply “we do not see this as a case of legitimate expectation”,71 rather the critical issue was whether there was a presumption to be applied. The court differed from Fisher J in finding that there was no such presumption, and rather unhelpfully declined to comment on whether legitimate expectation might be an appropriate vehicle to achieve adherence to this presumption if it could be established.
The Privy Council has offered some support for the principle in New Zealand Maori Council v Attorney-General 72 where, in reference to an assurance by the Solicitor General, it was stated:
The assurance once given creates the expectation, or to use the current parlance the "legitimate expectation", that the Crown would act in accordance with the assurance, and if, for no satisfactory reason, the Crown should fail to comply with it, the failure could give rise to a successful challenge on an application for judicial review73
This thread of principle, however, has remained under developed by subsequent courts.
68 Ibid at para 23, relying on R v Devon County Council, ex parte Baker [1995] 1 All ER 73 (CA)
69 Ibid at para 24, relying on R v Secretary of State for the Home Department, ex parte Khan [1984] EWCA Civ 8; [1985] 1 All ER 40
71 Ibid at para 41, we may interpolate that this was because it could not realistically be said that the applicants expected anything.
72 [1994] 1 NZLR 513 (PC)
73 Ibid at 525
In an obiter sentence74 in Attorney General v Steelfort Engineering75 the Court of Appeal appeared to offer support for the principle recognised in Coughlan and for the principle of irrevocability. The court had previously decided 76 that under the legislation at the time the Inland Revenue Department was not entitled to forgo the collection of tax since that would have been ultra vires the statute. This prevented applying the case of R v IRC, ex parte Preston 77 to enforce bargains made with the citizen. However it was recognised that in the present case it was permissible under the Customs Act 1996 for the Comptroller to waive small amounts of duty if agreement could be achieved:
Ordinarily, the Department will not be free thereafter to depart from the arrangement it has made with the importer. To attempt to do so could be seen as an abuse of power or as an endeavour to exercise a power which, by virtue of the compromise, no longer exists in the particular situation.78
The case illustrates the importance of the statutory context within which an expectation is created and the vexed issue of ultra vires representations, which is addressed in more detail in Chapter Three. Richard Best79 has suggested that this case provides “the primary seeds for the [NZ] Court of Appeal’s acceptance of Coughlan”. It seems, however, that this judgement has not had the effect Best suggested it might.80
New Zealand commentators seem to be equally divided on the issue. Best 81 seems to advocate the adoption of the principle enunciated in Coughlan, believing, despite the objections raised in the case law, that it is only a matter of time before the Court of Appeal does so. Conversely, Melissa Poole 82 believes that the doctrine must be confined to procedural protection and argues against the recognition of any review of the merits of administrative decisions outside reasonableness. Similarly, Mark
74 The decision was ultimately decided on a different basis
75 (1999) 1 NZCC 61,030 (CA)
76 Brierley Investments Ltd v Bouzaid [1993] 3 NZLR 655
77 [1984] UKHL 5; [1985] 2 All ER 327
78 Supra n 73
79 Richard Best, “Legitimate Expectation of a Substantive Benefit” (August 2000) NZLJ, 307, at 311
80 A Lexis Nexus search (15/9/2007) revealed no case where this point has been picked up. In Accent
Management Ltd v Commissioner of Inland Revenue (2006) 22 NZTC 19, 758, Venning J accepted that this case meant that the CIR was entitled to enter a settlement in the course of tax litigation. Case affirmed on appeal, (2007) 23 NZTC 21, 366, (CA).
81 Best, supra n 77
82 Melissa Poole, “Legitimate Expectation and Substantive Fairness: Beyond the Limits of Procedural Propriety” (1995) N.Z. Law Rev. 426
Campbell83 believes the concept of legitimate expectation to be useful only when confined to procedural remedies, and that awarding substantive remedies is “inappropriate” since other private law doctrines cover the same ground.
The principle of irrevocability
The principle of irrevocability was confirmed and explained by the Court of Appeal in
Goulding v Chief Executive, Ministry of Fisheries84 :
A valid administrative decision in the exercise of a statutory power, which is the outcome of a completed process, but which has not been formally communicated to interested parties, has not been perfected. It may be revoked and a fresh decision substituted at any time prior to communication of it to affected persons in a manner which indicates intended finality. Once such a decision is so communicated to the persons to whom it relates, in a way that makes it clear the decision is not of a preliminary or provisional kind, it is final. A final decision which is made in the exercise of a power which affects legal rights, including those arising from the grant of a licence, is irrevocable.85
Conclusions on substantive protection in New Zealand
The statement of Randerson J in The New Zealand Association for Migration and Investments Incorporated v Attorney General 86 seems to provide an accurate summation of the position in New Zealand at present:
Although the concept of legitimate expectation (at least in procedural matters) has long been recognised in administrative law, its boundaries are not well settled and it is far from straightforward to apply in practice.87
The analysis of New Zealand authority above reveals a diversity of approaches amongst the judiciary and it seems reasonable to suggest “clarification ... is urgently needed”. 88 The Court of Appeal has affirmed that the principle of irrevocability applies in New Zealand, although this might be due to the greater degree of formality or certainty in resting an expectation on a “decision” as opposed to an “informal representation”. There are, however, difficulties associated with determining exactly when a decision has been made 89 and, as the English jurisprudence shows, the
83 Mark Campbell, “The Legal Consequences of Promises and Undertakings Made by Public Bodies” (2002) Canterbury Law Review, 237
84 [2003] NZCA 244; [2004] 3 NZLR 173
85 Ibid at para 43
87 Ibid at para 137
88 Schonberg, supra n 31 at 113
89 See the comments of Binnie J for the minority in Mount Sinai, supra n 38 at 291
requirements for establishing a legitimate expectation are stringent enough to allay concerns about opening the “floodgates”. Nonetheless, if an applicant is able to cast the representation as amounting to a ‘decision’ this line of precedent will be useful. Mount Sinai suggests that the closer a representation looks like a decision, in so far as the authority has given full consideration to the ramifications of what it has said and has held it out as something to be relied upon, the more acceptable it will be to treat the authority as somehow bound by it.
Despite accepting that decisions which are not expressly provisional will be of the irrevocable, there is a complete absence of a reasoned conclusion on applicability of the principle enunciated in Coughlan in the New Zealand case law. The Court of Appeal and Privy Council have offered very limited support, but the lower courts have not developed these precedents. It seems that those who prefer to limit the concept simply refer to the robust rejection that legitimate expectations can generate substantive rights in the Australian case of Quin. Yet given the different constitutional context which partly compelled that conclusion, it may not be appropriate to rely on this case.90 Other judges, taking an expansive approach to review, refer to the English authority on the subject, although the standard of review which is to apply is by no means clear.
Hereafter this dissertation seeks to resolve some of this uncertainty by showing that a coherent argument can be made for granting substantive protection for legitimate expectations in an appropriate case and attempts to provide some guidance for approaching such cases. This authors opinion on the issue is summed up by Sedley J in R v Minister of Agriculture, Fisheries and Food, ex parte Hamble (Offshore) Fisheries Ltd. Noting that where the expectation is procedural it is directly enforced by the court, His Honour stated:
It is difficult to see why it is any less unfair to frustrate a legitimate expectation that something will or will not be done by the decision maker than it is to frustrate a legitimate expectation that the applicant will be listened too before the decision maker decides whether to take a particular step.91
90 This point is developed in Chapter Two
91 R v Minister of Agriculture, Fisheries and Food, ex parte Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714, at 724
Chapter Two:
Justifications and objections relating to the principle of substantive protection
Mark Campbell suggests that there are no convincing policy reasons which justify substantive protection of expectations.92 In this chapter that assertion is countered by a consideration of the theoretical justifications that do exist. The objections that have been put forward will then be assessed to see whether they require refusing to accept the principle.
Justifications
Legal Certainty
In England and Europe the concept of legal certainty has provided a major theoretical justification for enforcing substantive expectations. Several authors have analysed the concept in detail.93 This section puts forward a broad overview of the concept of legal certainty and suggests how it might relate to the concept of reliance, which itself has been offered as a justification94. Certain similar areas of the law where it can be seen operating will then be considered.
Personal autonomy is central to legal certainty.95 Jeremy Bentham noted that “we have the power of forming a general plan of conduct”,96 yet to be able to formulate such a plan we must be able to “foresee with some degree of certainty the
92 Campbell, supra n 83 at 259
93 Paul Craig has discussed the concept in several of his works:
“Substantive Legitimate Expectations in Domestic and Community Law” (July 1996) Cambridge Law Journal, 304-310
EU administrative law (Oxford University Press, 2006), chapter 16
Administrative Law (4th ed, Sweet & Maxwell, 1999), chapter 19, p615-617 In adittion see:
J. Schwarze, European Administrative Law (Sweet and Maxwell, 1992), chapter 6
Soren Schonberg, Legitimate Expectations in Administrative Law (Oxford University Press, 2000), p12-23
94 Schonberg, supra n 31 at 9
95 Ibid at 12
96 Bentham, supra n 1 at 51
consequences of [our] action”.97 In Craig’s words, “A basic tenet of the rule of law is that people ought to be able to plan their lives, secure in the knowledge of the legal consequences of their actions”.98 This is a value that is accepted by proponents of both formal and substantive conceptions of the rule of law.99 Following on from this, Raz (subscribing to the formal conception100) formulates several requirements which should guide the format of our law if it is to be “capable of guiding the behaviour of its subjects”. 101 Of particular relevance here is that the law is “subject to a requirement of predictability and certainty”.102
In formulating these requirements Raz clearly had in mind general norms that should apply to laws themselves, this being desirable for many aspects of the citizen’s life.103 It can, however, be argued that the need for legal certainty also exists on the lower plane of the administration of laws. This is especially so when the law in question grants a wide discretionary power. These are common place in administrative law,104 indeed the uncertainty inherent in such discretionary powers must form part of the reason departments publish ‘policy’ documents. Therefore, when representations in the nature of official statements are made to a citizen by those responsible for exercising the power, either as to how it will be exercised or what result will be reached, the life of the citizen is made more predictable, in so far as they are respected. Where they are not, as Schonberg states:
The legal protection of expectations by administrative law principles is a way of giving expression to the requirements of predictability, formal equality and constancy inherent in the rule of law.105
97 Schonberg, supra n 31 at 12
98 Paul Craig, “Substantive Legitimate Expectations in Domestic and Community Law” (July 1996) Cambridge Law Journal, 304-310
99 Paul Craig, “Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework”
(Autumn 1997) Public Law 467, citing Joseph Raz (formal) at 469 and Sir John Laws (substantive) at 479
100 Ibid at 469
101 Joseph Raz, The authority of law : essays on law and morality, (Oxford : Clarendon Press, 1983), at 212-219
102 Schonberg, supra n31 at p12
103 See Max Weber (noted by Schonberg, supra n 31 at 12) on the importance of predictability in
commerce: Max Weber, Economy and Society: An Outline of Interpretive Sociology ed. by Guenther Roth and Claus Wittich; trans. by Ephraim Fischoff et al (Berkeley: University of California Press, 1978) at 336.
104 On discretionary power in general see Denis Galligan, Discretionary powers : a legal study of official discretion (Oxford University Press, 1986)
105 Schonberg supra n 31 at 13
The relevance of reliance
Legal certainty is not, however, an absolute value and cannot justify enforcing every expectation. It is a value which must be balanced against the wider public interest, which on basic utilitarian theory will often prevail. But when it is appreciated why we want lives to be predictable, to be able to form a “general plan of conduct”, the importance of reliance becomes apparent. Reliance is offered as a justification for enforcing expectations by Schonberg distinct from the concept of legal certainty,106 but here it is suggested that they are interrelated.
Reliance is a factor which tips the scales in favour of the value of legal certainty in the envisaged balancing exercise107 or justifies a more intense standard of review.108 This is because reliance is usually manifested in the citizen having undertaken some course of action, or alternatively forgone some opportunity, and in neither case is it possible to go back to the position they were formerly in. The representation or assurance has, in Bentham’s words, caused them to form a “general plan of conduct”.
The reliance must be reasonable,109 which it often will be given the ‘contract like’ relationship that exists where there has been an ‘individualised representation’. The fact that ‘decisions’ are treated as irrevocable suggests that the closer the representation looks like a decision, the more reasonable it will be to rely on it. Another factor relevant to the reasonableness of the reliance will be exactly who made the representation. Only those who have “ostensible authority” 110 to make the representation should be relied on, but the citizen should not have to inquire further to establish whether internal procedures such as formal delegation have been complied with.111 If the citizen is aware that a further decision is yet to be made, it will not be reasonable to rely on the initial representation.112 It must also be appreciated by the
106 Ultimately he finds it too inflexible
107 See comments of Laws LJ in R v Secretary of State for Education and Employment, ex parte Begbie
[1999] EWCA Civ 2100; [2000] 1 WLR 1115, at 1131 holding that if there had been reliance he would have granted relief
108 As I suggest in Chapter Three
109 ex parte Begbie supra n 107, per Sedley J at 1134
110 See Lever Finance Ltd v Westminster (City) London Borough Council [1970] EWCA Civ 3; [1971] 1 QB 222, at 231B 111 Ibid at 231.But, problematically, if they have not, then the representation will be ultra vires, see R v Leicester City Council, ex parte Powergen UK plc [1999] PLR 91 where it was held that since the officers had no delegated power to waive certain conditions, their representations could not bind. See further discussion in Chapter Three
112 For example in Re 56 Denton Road, Twickenham, Middlesex [1953] 1 Ch 51 it was held that a decision which is expressly provisional can be revoked.
citizen that the public body intended to create an expectation which would be relied upon,113 such as in Coughlan where the promise was held out as an inducement to consent to being moved to the new hospital. In these circumstances it will clearly be unfair to depart from what was relied on unless there is a very strong justification for doing so.
Thus, the centrality of personal autonomy to legal certainty explains the weight which is given to the presence of reliance. Since the citizen has actually planned their life upon the basis of a representation, the need for legal certainty is heightened because of the harm which will be caused if that reliance is frustrated. The expectation of reliance is also a significant reason the duty of care is imposed in making utterances or giving advice in negligence cases.114
We might, therefore, expect that reliance would need to be present in all cases, yet it has been suggested that where there has been a “general representation” reliance need not be shown. 115 These cases, exemplified by E v Attorney General, 116 involve expectations that published governmental policy indicating how discretion will be exercised will in fact be followed. Craig states:
Where an agency seeks to depart from an established policy in relation to a particular person detrimental reliance should not be required. Consistency of treatment and equality are at stake in such cases, and these values should be protected irrespective of whether there has been any reliance as such.117
Since the rule of law also seeks to ensure consistency and equality, it is thought that reliance need not be shown. In Chapter Three, however, it is argued that the absence of reliance means a less intensive standard of review, such as bare rationality, is apt for such cases because the plaintiff has not suffered any “pain of disappointment”.118 Alternatively, where the applicant is simply not aware of the material on which the “expectation” is said to be based, a different doctrine altogether, such as the principle of consistency, may be more appropriate.
113 Paul Craig, Administrative Law(4th ed, Sweet & Maxwell, 1999), p 619
114 Noted by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] 195 A.L.R. 502 at para 62
115 Schonberg supra n 31 at p125
116 E v Attorney General, supra n 67 at para 29
117 Paul Craig, Administrative Law (5th ed, Sweet & Maxwell, 2003) at page 652
118 Bentham, supra n 1 at 51
Legal Certainty in other areas of the law
There are other similar areas of the law where the concept of legal certainty can be seen operating. One clear example is estoppel. In fact, before the doctrine of legitimate expectation evolved in English law, promissory estoppel was directly applied against public bodies in a number of cases,119 so there is a definite analogy between the concepts. 120 Estoppel is an example of legal certainty because it is granted where there has been reliance causing the representee to take some course of action to their detriment. In other words the representation caused them to plan their lives, yet that plan was frustrated when the representation was departed from. Similar factors justify remedies for breaches of contract.121
Legal certainty also informs the doctrine of officially induced error of law, which operates against public bodies to afford substantive protection to a citizen’s reliance. Thus, where a citizen has approached an official responsible for administering a particular law for advice and in reliance on that advice an offence is in fact committed; the citizen will have a good defence to any prosecution.122 That the citizen receives some remedy for relying on mistaken advice about the law in this situation reinforces the applicant’s claim where they have relied on an ultra vires representation.123
The requirement of certainty is also present where there has been plea bargaining in the criminal context. Thus, if these public officials seek to renege on such deals courts will usually intervene and enforce the promise. For example, in Delellis v R 124 the appellant had entered into an agreement that he would tell the police about the location of a large quantity of cocaine in return for an assurance that he would not be prosecuted for importing cocaine. The judge held that to now bring charges against
119 Robertson v Minister of Pensions [1949] 1 QB 227, Wells v Minister of Housing and Local Government [1967] 1 W.L.R 1000, Lever Finance Ltd v Westminster (City) London Borough Council [1970] EWCA Civ 3; [1971] 1 QB 222 and Congreve v Home Office [1976] 2 W.L.R 291.
120 This was noted in noted in R v East Sussex County Council ex Parte Reprotech (Pebsham) Ltd
[2002] UKHL 8; [2002] 4 All ER 58
121 Schonberg, supra n 31 at 10
122 In Tipple v Police [1993] NZHC 2074; [1994] 2 NZLR 362 the court stated:
“in a case in New Zealand of officially induced error of law resulting in a person committing a crime believing it on that ground to be lawful, it was in the public interest as well as just that such a person should not be criminally liable”
123 Discussed further in Chapter Three
124 [1989] NZHC 711; [1989] 4 CRNZ 601
the appellant was inconsistent with the recognised purposes of the administration of criminal justice, and was therefore an abuse of the process of the court. The charge of importing cocaine was stayed.125 It is interesting that courts will intervene in decisions about whether or not to prosecute despite the fact these decisions essentially involve “the exercise of a discretionary public power”,126 which are generally treated as non reviewable.
Trust and Good Administration
Both Craig127 and Schonberg128 suggest that protecting legitimate expectations fosters good administration and trust in government. Craig points out that it is important to realise that “such protection can also benefit the public authority”129:
... administrative power is more likely to be perceived as legitimate authority if exercised in a way which respects legitimate expectations. Perceived legitimate authority is more efficacious because it encourages individuals to participate in decision making processes, to co-operate with administrative initiatives and to comply with administrative regulations.130
125 There are several instances of these kinds of cases. See R v Croydon Justices, ex parte Dean [1993] QB 769 and Chu Piu-wing v Attorney General [1984] HKLR 411. In Fox v Attorney General [2002] NZCA 158; [2002] 3 NZLR 62 the CA affirmed that “a circumstance which could result in continuation of a prosecution being an abuse of process is if the change of course by the police created prejudicial consequences for the person charged. The facts of Dellelis v R illustrate that situation.”
126 Fox v Attorney General [2002] NZCA 158; [2002] 3 NZLR 62, at para 30
127 Craig, EU Administrative Law (Oxford University Press, 2006) at 613
128 Schonberg, supra n 31, at 24
129 Craig, supra n 127, at 613
130 Schonberg, supra n 31, at 25
Objections
Despite the justification discussed above, there are other values and arguments which count against the enforcement of substantive expectations. This section assess these and considers whether they are strong enough to negate the justifications.
The value of unfettered powers
Legal certainty is not an absolute value. In administrative law the paramount duty of a public authority is to exercise their powers in the public interest, representing the utilitarian premise that underlies much of our thinking in this field. Inevitably the wider public interest may conflict with the enforcement of a citizen’s expectation. The rule against estopping public authorities and the no fettering rule derive from the principle that public authorities must be able to exercise their powers in accordance with the “needs of the community when the question arises”.131 This has led some to conclude that there can be no substantive protection for expectations.132
Our initial conceptualisation of a legal problem will influence its resolution133 and blind us to alternative solutions. If in conceptualising the paradigm substantive legitimate expectation problem we only consider the principle that a public body cannot fetter its ability to develop policy, 134 “substantive legitimate expectations should not, as a matter of principle, be held to exist”.135 It is, however, important to recognise that there are two legal values at stake in such cases, the principle of legality and legal certainty:
Once it is accepted that the value of legal certainty should be of relevance in this initial evaluation of the problem, then the legal rule which follows looks markedly different from that which exists if the only value is legality taken in the sense described above. The very realisation that there are two values at stake means that the denial of any doctrine of substantive legitimate expectations is no longer plausible ... The relevant legal rule would have to accommodate both of the values through some form of balancing approach.136
131 Rederiaktiebolaget Amphitrite v R [1921] 3 KB 500, at 503
132 See in particular Dawson J in Attorney General (NSW) v Quin [1990] 93 A.L.R. 1 and also Coal Producers' Federation of New Zealand Incorporated v Canterbury Regional Council [1999] NZRMA 257
133 Paul Craig, “Substantive Legitimate Expectations in Domestic and Community Law” (July 1996)
Cambridge Law Journal, 289, at 299
134 What Craig calls the principle of legality, ibid at 299
135 Ibid at 299
136 Ibid at 299
Thus, where the dangers against which the no fettering/no estoppel rule guard against are not present or are negligible, then the value of legal certainty must prevail. This much seems to have been recognised by Mason CJ in Quin,137 where it was said that if there was no public interest justifying the departure, an estoppel could lie.138 Hence the modern English jurisprudence envisages a balancing test of whether the claimed public interest justifies departure from the representation.
There are other reasons why the fear public bodies will be unduly fettered is misplaced. Since substantive protection will generally be limited to cases where there has been a direct representation which is relied on, a discretion will only be fettered in respect of one, or very few, citizens.139 Also, as Craig notes,140 most claims will have a temporal limit or dimension. Furthermore, the applicant will have to show the existence of the expectation based on a clear and unambiguous representation, which cases like ex parte Preston141 and ex parte MFK142 show will not be easy.143
Genevieve Cartier has also shown that a strict interpretation of the non fettering rule would preclude granting even procedural protection for legitimate expectations.144 She explains that if we accept that in at least some cases procedural rights have an instrumental effect then they will have some influence over the substance of the decision actually reached, thereby operating as a fetter on discretion. Thus, “the procedural aspect of the doctrine of legitimate expectations is incompatible with or cannot be explained under, the ultra vires doctrine”.145 This has not been suggested in any of the case law, perhaps due to the belief that procedural matters are the proper concern of judicial review.
137 Quin, supra n 132
138 This was also how Lord Denning got around the no estoppel rule, see British Airways v Laker Airways [1976] EWCA Civ 10; [1977] QB 643, at 707 and H.T.V Ltd v Price Commission [1976] ICR 170, at 185
139 For example, in R v Secretary of State for Education and Employment, ex parte Begbie [2000] 1 WLR, relief was denied because the applicant before the court had not relied on a representation made
to another pupils parents.
140 Craig, supra n 127, at 614
141 R v IRC, ex parte Preston [1984] UKHL 5; [1985] 2 All ER 327
142 R v Inland Revenue Commissioners, ex parte MFK Underwriting Agencies Ltd [1990] 1 WLR 1545
143 Craig, supra n 127, at 614
144 Genevieve Cartier, “A Mullian Approach to the Doctrine of Legitimate Expectations: Real
Questions and Promising Answers”, in Inside and Outside Canadian Administrative Law; Essays in Honour of David Mullan (University of Toronto Press, 2006), at 194-197
145 Ibid at 196
Although not every legitimate expectation will give rise to substantive protection, only those where the departure can be shown to be unjustified, some would still object since this exercise entails:
curial interference with administrative decisions on the merits by precluding the decision maker from ultimately making the decision which he or she considers most appropriate in the circumstances .146
Excessive intrusion into the merits
Some commentators doubt whether courts can make assessments of the ‘merits’,147 suggesting instead that legitimate expectations should only be procedurally protected.148 The strength of this objection is questionable. The quotation above is taken from the judgement of Mason CJ in Attorney General (NSW) v Quin.149 That this factor prevented recognising substantive expectations was strongly reinforced by Brennan J:
The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone ... those limitations [which have been developed] are not calculated to secure judicial scrutiny of the merits of a particular case.150
We have seen in Chapter One that those in New Zealand who favour limiting legitimate expectations to matters of procedure rely on this case, but give little consideration of the reasons for its conclusion. In order to appreciate why in Australia ‘merits’ review is precluded it is necessary to delve a little deeper, which will reveal why the objection does not have as much force in New Zealand.
The court in Quin, particularly Brennan J, offered a strong rejection of the contention that there could be an enforceable substantive expectation, instead holding legitimate expectations were to be indicators of what natural justice might require.151 Although Quin fell relatively early in the context of the evolution of legitimate expectation, and
146Attorney General (NSW) v Quin [1990] 93 A.L.R. 1, per Mason CJ at 15
147 Mark Campbell, “The Legal Consequences of Promises and Undertakings Made by Public Bodies” (2002) Canterbury Law Review, 237, at 257
148 Melissa Poole, “Legitimate Expectation and Substantive Fairness: Beyond the Limits of Procedural
Propriety” [1995] N.Z. Law Rev. 426. This author argues strongly against recognising any substantive review outside of rationality
149 Supra n 146
150 Supra n 146 at 25
151 Supra n 146 at 40 per Dawson J
despite some members of that court subsequently changing their view on the issue,152 the High Court of Australia affirmed Quin in Re Minister for Immigration and Multicultural Affairs; ex parte Lam.153 The joint judgement of McHugh and Gummow JJ (with the express support of Calligan J on this point) stated:
That [the judgement in Quin] remains the position in this court and nothing in this judgment should be taken as encouragement to disturb it by adoption of recent developments in English law with respect to substantive benefits or orders ... An aspect of the rule of law under the Constitution is that the role or function of Ch III courts does not extend to the performance of the legislative function of translating policy into statutory form or the executive function of administration.154
In an article referred to in this judgement by Bradley Selway QC,155 the peculiar constitutional setting in Australia which compels this result is explained. Selway notes that courts in England and New Zealand have accepted a wider basis for judicial review, focussing on the nature of the power being exercised,156 whereas in Australia the courts have tended to adhere with an approach which conforms to the concept of ultra vires. Selway poses the question whether Australia should follow the English lead, which he believes it cannot because of Australia’s particular constitutional context:
The Constitution itself limits the role and function of the federal courts. It is not their role or function to carry out the executive function of administration or the legislative function of determining policy. These are the proper role of the other arms of government. The proper role of the federal courts is to determine if the relevant legislative or executive act or decision was in breach of or unauthorised by the law or was beyond the scope of the power given to the decision maker by the law. In this broad sense, the proper role of the federal courts is to determine if the act or decision was ultra vires and was consequently of no legal effect, or if the relevant decision maker had failed to comply with the law and should be compelled to do so.157
What this means is that:
152 Sir Anthony Mason, albeit and perhaps significantly, in a different jurisdiction. See Ng Siu Tung v The Director of Immigration [2002] HKCFA 3.
154 Ibid at paras 67-76
155 Bradley Selway QC, “The Principle Behind Common Law Judicial Review of Administrative Action” (2002) 30 Federal Law Review 217
156 The acceptance of substantive legitimate expectations in Coughlan is cited as an example of this approach
157 Selway, supra n 155, at 234
The vigorous debate that has occurred in England over the last decade as to the proper role and function of judicial review ... is fundamentally irrelevant to Australian judges and lawyers.158
Other commentators also note that adoption of Coughlan is unlikely in the Australian constitutional context.159 Instead of allowing courts to judicially review the ‘merits’ of administrative decisions the legislature in Australia has expressly provided a body with such powers; The Administrative Appeals Tribunal.160 Arguably this precludes the need for other courts to review ‘merits’. Even where the legislature declines to afford such a right of appeal, this must be regarded as a conscious choice.
Given that the merits objection so prominent in Quin and Lam rests on Australia’s particular constitutional context, it is inappropriate for New Zealand courts, absent a consideration of their own constitutional context, to rely on it. In fact New Zealand’s “unwritten” constitution resembles more closely England than Australia. This is borne out by the wider approach to judicial review alluded to by Selway.
It is important to recognise that substantive review in New Zealand is not limited to reasonableness or rationality. In the case of Thames Valley Electric Power Board v NZFP Pulp & Paper Ltd 161 President Cooke articulated the ground of substantive unfairness upon which to review the merits of administrative decision making, suggesting that it “shaded into” but was not identical to unreasonableness. He went on, “Inevitably this means, whatever the verbal formula of review adopted, that the quality of an administrative decision as well as the procedure is open to a degree of review”.162 The two other members of the court, whilst agreeing in principle, were more cautious. Fisher J agreed that some of the grounds of review might be brought under the head of substantive fairness, but also expressed reservations, “on each occasion that the expression ‘substantive unfairness’ is applied to a case it will
158 Selway, supra n 155, at 234
159 Sir Anthony Mason suggests it would “require a revolution in Australian judicial thinking”, “Procedural Fairness: Its development and continuing role of legitimate expectation” (2005)12 AJ
Admin L 103, at 108. See also Wendy Lacey: “A Prelude to the Demise of Teoh: The High Court Decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam” (2004) SydLRev 7 160 Established by the Administrative Appeals Tribunal Act 1975 as part of a general reorganisation of Australian administrative law, itself prompted by the Kerr Report. See generally David Pearce Australian Administrative Law Service (Butterworths, 1979)
162 Ibid at 652
continue to be necessary to identify a more specific and principled administrative law basis for intervention”.163
Melissa Poole has doubted whether the authority relied on by President Cooke is accurate,164 however, it is significant for present purposes that one of the cases relied on is ex parte Preston,165 which itself can be seen as an early legitimate expectation case. Of further relevance is the suggestion of Fisher J that “departures from assurances given”166 may exhibit substantive unfairness. The potential nexus between these concepts was also recognised by Gendall J in Northern Rolling Mills. 167 Substantive unfairness has been applied in a number of cases,168 albeit not in respect of a legitimate expectation. Nonetheless, its presence does evidence a wider function for New Zealand courts in judicial review to include some merits based review, unlike in Australia.
There are other reasons the merits objection lacks strength. Firstly, an unacceptable intrusion into the merits of administrative decisions would be one which lacks a coherent and principled basis for doing so. Brennan J inferred legitimate expectation was “too nebulous” to provide a basis to interfere in the merits. 169 “Unreasonableness”,170 “substantive unfairness”171 and the English concept of “abuse of power”172 can rightly be regarded as offering little guidance for their application. It is clear, however, that these are mere labels “for various aspects of substantive
163 Ibid at 654
164 Poole, supra n 148 at 433-444
165 R v IRC, ex parte Preston [1984] UKHL 5; [1985] 2 All ER 327. Indeed Craig has suggested substantive unfairness may be but another name for “abuse of power”: Craig, supra n 114, at 622
166 Supra n 161 at 654
167 Northern Roller Milling Co Ltd v Commerce Commission [1994] 2 NZLR 747, at750
168 For example, Shaw v Attorney-General (No 2) [2003] NZAR 216 and B v Commissioner of Inland Revenue [2004] 2 NZLR 86
169 Supra n 146 at 27
170 See the comments of Thomas J in Waitakere City Council v Lovelock [1997] 2 NZLR 385 (CA), at 400-401 that semantics cannot overcome the subjective element inherent in an assessment of
reasonableness. See also Lord Cooke’s dissatisfaction with the concept prompting a reformulation in R v Chief Constable of Sussex [1998] UKHL 40; [1999] 1 All ER 129, at 157: “whether the decision in question was one which a reasonable authority could reach”.
171 See the reservations of McKay J, supra n 161 at 654
172 In R (Bibi) v Newham LBC [2001] EWCA Civ 607; [2002] 1 WLR 237, at 244 Schiemann LJ stated that:
“the case law is replete with words such as “legitimate” and “fair”, “abuse of power” and “inconsistent with good administration”. When reading the judgments care needs to be taken to distinguish analytical tools from conclusions which encapsulate value judgments but do not give any indication of the route to those conclusions.”
impropriety”173 and that in each case “it will continue to be necessary to identify a more specific and principled administrative law basis for intervention”.174 It is on this lower plane that substantive legitimate expectations operate, providing a specific example of the more general ground of “substantive impropriety”. Since the law in England has developed to a stage where the application of the principle is reasonably certain, this cannot be seen as an unprincipled and incoherent means to interfere in the merits of administrative decisions. In fact it presents a more objective approach than the unstructured value judgements inherent in labelling a decision “unreasonable” or “unfair”.
Secondly, the balancing test of whether a public interest justifies some conduct on the part of the state envisaged in legitimate expectation cases is hardly a novel or particularly unsuitable task for the judiciary. As we have seen, the courts feel they are able to decide what will constitute good reason not to grant expected procedural rights175, so why should they not be able to decide whether the reason is sufficient to justify departing from the expectation? The balancing exercise is similar to that found in several areas, for example under s5 of the New Zealand Bill of Rights Act 1991176 and the method for excluding evidence formulated in R v Shaheed.177 There is also a parallel here with the task allotted to courts in cases concerning what used to be known as “Crown Privilege”.178 When the Crown perceived the “public interest” required that evidence in proceedings should not be disclosed it could claim “Crown Privilege” to prevent it being produced.179 As Wade states:
The court could not question a claim of Crown privilege made in proper form, regardless of the nature of the document. Thus the Crown was given legal power to override the rights of
173Waitakere, supra n 170 at 412
174 Supra n 161 at 654
175 The New Zealand Association for Migration and Investments Incorporated v Attorney General
176 Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9. One commentator has suggested that the greater the extent of the judiciaries power of reviewing legislation the more readily such a
jurisdiction should accept substantive protection for expectations, Calvin Eversley “Legitimate Expectation and the Creation of Procedural and Substantive Legal Rights in Commonwealth Caribbean Public Law” (December 2004) Common Law World Review, 332
177 [2002] 2 NZLR 377, refined in R v Williams [2007] NZCA 52; [2007] 23 CRNZ 1, now enshrined in s30 of the
Evidence Act 2006
178 In general see Craig, supra n 113 at 821-824
179 See Ellis v Home Office [1953] 2 QB 135 and Broome v Broome [1955] P 190
litigants not only in cases of genuine necessity but in cases where a government department thought fit.180
In Conway v Rimmer 181 the House of Lords reversed this position with the effect that “in every case the court had the power and the duty to weigh the public interest of justice to the litigants against the public interest asserted by the government”.182 The fact that otherwise the Crown would be the judge in its own cause has particular relevance to legitimate expectation cases. What Wade calls “undue indulgence by the courts to executive discretion, followed by executive abuse”183 is as undesirable, if not more, here as it was under “Crown Privilege”.
Furthermore, concerns about excessive interference into the merits can be addressed by applying varying intensities of review. As Laws LJ comprehensively stated in ex parte Begbie184:
It is now well established that the Wednesbury principle itself constitutes a sliding scale of review, more or less intrusive according to the nature and gravity of what is at stake ... The facts of the case, viewed always in their statutory context, will steer the court to a more or less intrusive quality of review. In some cases a change of tack by a public authority, though unfair from the applicant's stance, may involve questions of general policy affecting the public at large or a significant section of it (including interests not represented before the court); here the judges may well be in no position to adjudicate save at most on a bare Wednesbury basis ... The case's facts may be discrete and limited, having no implications for an innominate class of persons ... In such a case the court's condemnation of what is done as an abuse of power, justifiable (or rather, falling to be relieved of its character as abusive) only if an overriding public interest is shown of which the court is the judge, offers no offence to the claims of democratic power.185
This means that deference can be shown where it is appropriate.186
It seems hard to deny that what the courts are doing when they embark on the balancing test is an assessment of the merits of a decision already made by the public authority. Yet even if this is accepted, judicial review is not thereby precluded. Merits based review under the rubrics of reasonableness or substantive unfairness is very
180 HWR Wade, Administrative Law (5th ed, Clarendon Press, 1982) at 722
181 [1968] UKHL 2; [1968] AC 910
182 Wade, supra n 180 at 726. In the New Zealand context see R v Hughes [1986] NZCA 56; [1986] 2 NZLR 129
183 Wade, supra n 180 at 721
184 R v Secretary of State for Education and Employment, ex parte Begbie [1999] EWCA Civ 2100; [2000] 1 WLR 1115
185 Ibid at 1130
186 See Waitakere City Council v Lovelock [1997] 2 NZLR 385 (CA) at 402 and Tupou v Removal Review Authority [2001] NZAR 696 at 704 for a discussion of intensity in the New Zealand context
much a feature of NZ based judicial review, unlike our Australian cousins whose constitutional context is said to inhibit substantive review. Whilst substantively protecting expectations may shift part of the balance between the executive and the judiciary, in England, where this has been accepted, “the sky over Whitehall is still more or less in place”.187
Most claims covered by other grounds
Mark Campbell suggests that since most cases can be dealt with either by estoppel or negligence, the substantive dimension of legitimate expectations is redundant .188 Whether this is true is doubtful.
Estoppel appears to have been overtaken by legitimate expectation. It is true that in several cases Lord Denning 189 applied promissory estoppel to public authorities binding them to representations they had made to citizens.190 However, applying the private law concept of estoppel to public authorities in the different theoretical framework of judicial review was problematic in the face of a general rule thought to prohibit this.191 Lord Denning suggested that the general rule preventing a public body being estopped was:
...subject to the qualification that it [a public body] must not misuse its powers: and it is a misuse of its power for it to act unfairly or unjustly towards a private citizen when there is no overriding public interest to warrant it.192
Despite His Lordships readiness to enforce estoppel against public bodies, other judges were more cautious. 193 In Western Fish Products Ltd v Penwith District Council 194 the court characterised cases where Lord Denning had enforced an
187 Rt Hon Lord Justice Sedley, “The last 10 years’ development of English Public Law”, (2004) 12 AJ Admin L 9, at 20
188 Campbell, supra n 14 at 259
189 Who himself resurrected the concept in Central London Property Trust Ltd v. High Trees House Ltd
(1946) [1956] 1 All E.R. 256.
190 Robertson v Minister of Pensions [1949] 1 QB 227, Wells v Minister of Housing and Local Government [1967] 1 W.L.R 1000, Lever Finance Ltd v Westminster (City) London Borough Council
[1970] EWCA Civ 3; [1971] 1 QB 222 and Congreve v Home Office [1976] 2 W.L.R 291. H.T.V Ltd v Price Commission
191 The origins of that rule can be traced back to Rederiaktiebolaget Amphitrite v R [1921] 3 KB 500 and Maritime Electric Company Ltd v General Dairies Ltd [1937] UKPC 16; [1937] A.C 610
192 See H.T.V Ltd v Price Commission [1976] ICR 170, at 185 and British Airways v Laker Airways
[1976] EWCA Civ 10; 1977] QB 643, at 707
193 Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416, at 424
194 [1981] 2 All ER 204
estoppel as exceptions to the general rule. As was noted by Lord Hoffman in ex parte Reprotech (Pebsham) Ltd,195 this approach to reconciling the conflicting principles did not receive universal satisfaction. 196 Instead, at least by 2002, legitimate expectation was the better doctrine:
It seems to me that in this area, public law has already absorbed whatever is useful from the moral values which underlie the private law concept of estoppel and the time has come for it to stand upon its own two feet.197
Given the clear analogy between the approaches the difference may be one of semantics rather than substance and one which helpfully sidesteps the circular objection that an estoppel cannot hinder a public body. It appears that under either approach a court must grapple with the same issues. Nonetheless the House of Lords in Reprotech has severed any ties with estoppel, meaning that now legitimate expectation is the doctrinal vehicle by which a public authority can be held to its representations or assurances. This seems to have been confirmed in New Zealand by Wild J in Challis v Destination Marlborough Trust Board Inc,198 “estoppel has no place in modern public law, and I hold against the existence of this cause of action”.199
It is also doubtful whether negligence is the correct vehicle to use where expectations are frustrated. In Meates v Attorney General 200 the Court of Appeal held the government liable for a failure to implement a promise to support a company in the event of financial difficulties, holding that there was a duty to take care in making assurances and to take reasonable steps to ensure that promise was honoured (arguably going beyond the principle in Hedley Byrne & Co Ltd v Heller & Partners Ltd 201). Yet it is hard to see how a duty of care conceptually fits a promise to do some act in the future, indeed this judgement was later criticised by the Privy Council in
195 R v East Sussex County Council ex Parte Reprotech (Pebsham) Ltd [2002] UKHL 8; [2002] 4 All ER 58, at 66, para 35
196 See the comments of Dyson J in R v Leicester City Council, ex parte Powergen UK plc [1999] PLR
91, at 100-101, “I find it difficult to discern the true scope of these exceptions ...”
197 Supra n 195 at 66, para 35
199 Ibid para 105
200 [1983] NZLR 308
201 [1963] UKHL 4; [1964] AC 465, see J Smillie, “Certainty and Civil Obligation” (annual 2000) , Otago Law Review 633, at 647-649
Meates v Westpac Banking Co,202 which was an appeal arising from the same set of facts. The Board stated that:
Their Lordships have considerable difficulty in grasping the concept of a duty in tort to take reasonable care to pay or procure payment of a sum which nobody is under a contractual obligation to pay.203
It is also not clear how a negligence action could accommodate the need for public authorities to depart from an assurance when the public interest so requires. Although it is questionable whether Meates was legally correct, it does present an interesting precedent, especially for an applicant who is seeking monetary compensation instead of the traditional public law remedies.204 A Hedley Byrne action may also avail the applicant who relies on an ultra vires representation, as is suggested in Chapter Three.
The “Osmosis” theory
The protection of substantive legitimate expectations is a central principle of European Community administrative law. 205 It can be argued that this was a significant impetus for the developments which have taken place in the United Kingdom, although Lord Denning later disavowed any continental influence over his adoption of legitimate expectation in Schmidt.206 It would clearly be undesirable to have so-called “two speed justice” operating in the UK. As Schonberg explains,207 this would occur if the domestic courts in the UK were to accept only the procedural aspect of legitimate expectations, yet in matters “which have an EC dimension” the courts would be bound to enforce substantive expectations in the right case. This continental influence is noticeably absent New Zealand and with it, perhaps, a major justification for enforcing substantive expectations.
Whilst it cannot be denied that the European jurisprudence has significantly influenced English developments,208 it is doubtful whether this will prevent such
202 [1990] UKPC 27; [1991] 3 NZLR 385
203 Ibid at 403
204 The Law Commission has indicated that it may review the procedures and remedies available on review, see New Zealand Law Commission, Mandatory Orders Against the Crown and Tidying up
Judicial Review, Study Paper 10, March 2001
205 Schwarze, supra n 93, chapter six
206 Forsyth, supra n 12
207 Schonberg, supra n 31 at 26-27
208 See in particular the judgment in R v Minister of Agriculture, Fisheries and Food, ex parte Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714, and the work of Paul Craig who is undoubtedly the
leading academic in this field
developments in New Zealand. Until the very recent creation of the Supreme Court209 “osmosis” would have been an apt phrase to describe the relationship of English to New Zealand law.210 Even now those ties have been severed, the position in England on a contentious issue in New Zealand would be a highly relevant consideration, indeed more recent cases have increasingly acknowledged, although by no means adopted, the principle in Coughlan.211 This is reinforced by the fact that our executive systems and ways of controlling that through judicial review remain very similar. Therefore, “osmosis” may in fact provide the means by which this originally European concept finds its way through England down to the antipodes.
Procedural protection sufficient
Procedural rights are not always sufficient. There is often an air of unreality about claims to procedural expectations, whether they are thought to be instrumental or non instrumental. It is inconceivable that a person affected by a particular decision would go to court and seek review of the decision for a failure to consult if a favourable outcome was reached. Generally decisions are only reviewed because of dissatisfaction with the result, and an unfair procedure is one way to quash such a decision. Realism suggests the applicant’s objection always lies in the substance of the decision. Furthermore, if the courts were to completely withdraw from assessing the merits of decisions, a dangerous precedent would be set whereby an authority could freely represent matters to citizens, safe in the knowledge that so long as correct procedures were followed, they could never be held to it. In this area the judiciary has an important role in constraining the executive, since an individual such as Miss Coughlan will not alone be able to hold it to account through the democratic process.
An undue “chilling effect”
It could be argued that if expectations based on representations were enforceable against them then public authorities would be extremely reluctant to issue guidelines and give informal advice. This in turn would make the individuals life even more unpredictable and actually offend legal certainty. Schonberg, however, argues that
209 Via the Supreme Court Act 2003
210 Indeed the privy council intimated that the same law applied in NZ in New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513 (PC)
211 See for example Beaton v Institute of Chartered Accountants of New Zealand unreported, HC
Auckland, CIV 2005-4042642, 17th November 2005, Allen J, at para 147. See also Lalli v Attorney General unreported, HC Auckland, CIV 2006-404-00435, 27th April 2006, Asher J, at para 29.
there is no empirical evidence from states where expectations are enforced that there exists such a “chilling effect”.212 Furthermore, as he points out, even if the quantity of advice is reduced, its quality, in terms of accuracy and reliability, is likely to be greatly enhanced. As was pointed out as long ago as Denton Road:
This judgement can do no harm to the defendants. Let them mark every intimation of a “determination” of theirs as “provisional”, “subject to alteration”, “not to be relied on” or words to that effect.213
This would have the desirable effect of negating the “pain of disappointment” caused by reneging on assurances.
212 Schonberg, supra n 31 at 19
213 Re 56 Denton Road, Twickenham, Middlesex [1953] 1 Ch 51, at 58
Chapter Three:
This chapter focuses on the English jurisprudence which, on the basis of the justifications discussed above, has accepted that in the right case a court may enforce an expectation of a substantive benefit. The English cases show how a New Zealand court should approach such cases. The first question is whether a legitimate expectation can be established on the facts before the court. Having shown that, the court must go on to assess whether the denial of what the citizen had been led to expect is justifiable having regard to the claimed public interest.
What must be shown to establish a legitimate expectation?
The first question must be whether the citizen had a legitimate expectation. Space precludes a detailed assessment of the relevant factors which are more comprehensively covered elsewhere.214 In any case these factors, for the most part, 215 are not contentious. In this section the focus is on the structural requirement that a representation must be intra vires.216
The problem of ultra vires representations
A representation may be ultra vires in two senses, either the authority which made it had no power to do so, or the particular official had no power to make it.217 The rationale for this is said to be that otherwise public authorities would be able to extend their powers at will.218
214 See for example Paul Craig, Administrative Law (4th ed, Sweet & Maxwell, 1999), at 618-620
215 There is some disagreement over whether the applicant must subjectively entertain the expectation, I return to this point below
216 R (Bibi) v Newham LBC [2001] EWCA Civ 607; [2002] 1 WLR 237, at 249
217 Craig, supra n 214 at 638
218 Minister of Agriculture and Fisheries v Hulkin, unreported, but cited in Minister of Agriculture and Fisheries v Mathews [1950] 1 KB 148 at 153. Referred to by Craig, supra n 214 at 642
The problem is best illustrated by the facts of Rowland v Environment Agency.219 The case concerned public rights of navigation (PRN) over a stretch of the river Thames, which had been thought to exist “since time immemorial” at common law and under statute. Nonetheless, for over one hundred years the stretch was treated by successive Navigation Authorities as private. In 2000 the defendant reconsidered the matter and affirmed that there was in fact a PRN. The applicant, who owned adjacent property, claimed a legitimate expectation that the water way was in fact private. Her claim failed because her expectation was based on conduct which was ultra vires the authority. They had no power to waive the PRN over the water way. May LJ reached this conclusion with “undisguised reluctance ... because I regard the outcome as unjust”.220
Paul Craig similarly regards this situation as unfair. He shows that most cases concern not intentional conduct, but rather an inadvertent or careless extension of power by the public authority. In such cases “it is not clear why the loss should be borne by the representee”.221 The fact that the citizen has a defence when they are the victim of an “officially induced error of law” reinforces the suggestion that their reliance on an ultra vires representation should be protected in some way.222 In both situations the citizen cannot be expected to second guess advice obtained from state officials, suggesting that the relevant authority must take some responsibility instead of sheltering behind an ultra vires argument. Craig argues that the court should undertake a balancing approach; that if the harm to the individual outweighs the harm of allowing ultra vires conduct to be binding, then the representation should bind.223
The balancing approach does, however, have shortcomings. By indirectly sanctioning unlawful conduct the courts would seem to be undercutting the rule of law, from which the principle of legal certainty and the justification for enforcing substantive expectations derives. As Craig acknowledges, this balancing approach would also create a large degree of uncertainty, as well as offend Parliamentary Sovereignty.224
219 [2004] 3 WLR 249, for a comparable New Zealand case see Brierley Investments Ltd v Bouzaid
220 Ibid at 282
221 Craig, supra n 214 at 640
222 See discussion in chapter two
223 Craig, supra n 214 at 644
224 Ibid at 647
Alternatively Craig suggests that compensation should be available in these situations, 225 but again there are problems with this. The most significant is the availability of funds. Another option might be a negligence claim under Hedley Byrne.226 Here the public authority would be held to be under a duty of care when they purport to make declarations of what the law is.227 Since, as Craig highlights, most cases of ultra vires representations stem from carelessness on the part of officials or authorities, negligence is an appropriate action. 228 Otherwise, the expectation, although based on ultra vires conduct, could be treated as a mandatory relevant consideration. This was done in Tay v Attorney General229, but again, this will only assist an applicant where the decision maker was not in fact aware of the detriment suffered.
What should a court do when that expectation is frustrated?
Having shown the expectation to be legitimate, the court must then ask what should be done in situations where it is frustrated.
Following the early estoppel and “revenue” cases, there was a significant degree of uncertainty over what the correct standard of review was in cases involving the deprivation of a substantive benefit which was legitimately expected. 230 Indeed, whether a court could intervene at all in such cases, as opposed to where the claim
225 Ibid at 649
226 Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] UKHL 4; [1964] AC 465
227 See for example Minister of Housing and Local Government v Sharp and Another [1970] 2 QB 223 where a duty of care was imposed on the registrar when conducting searches of the registrar.
228 There may still be problems in cases where the applicant has taken all due care but the interpretation
of a law or policy by an official is simply held to be wrong
230 In R v Inland Revenue Commissioners, ex parte Unilever plc and Related [1996] STC 681 Simon
Brown LJ regarded legitimate expectation “as essentially but a head of Wednesbury unreasonableness”. In R v Minister of Agriculture, Fisheries and Food, ex parte Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714 Sedley J envisaged a balancing of the imperative behind the policy change against the applicants’ expectation, akin to a proportionality test. This was later characterized as “heresy” by Hirst LJ in, R v Secretary of State for the Home Department and another, ex parte Hargreaves and others [1997] 1 All ER 397, rather “on matters of substance, Wednesbury provides the correct test”.
was to procedural rights231 could not be regarded as settled. More recently the Court of Appeal232 and the House of Lords233 have confirmed the existence of the principle and different approaches have emerged as to what a court should do when an expectation has been frustrated.
Categorisation
Lord Woolf MR undertook a much needed consideration and categorization of the extant case law on legitimate expectation in R v North East Devon Health Authority, ex parte Coughlan.234 This case concerned an explicit promise to Miss Coughlan and other severely disabled patients who were under the care of the National Health Service. They were assured that if they agreed to move from their current facility to ‘Marsdon House’, the new residence would be their home for life. Despite this, the local health authority decided that financial considerations meant that the facility had to be closed down. The court considered that where, as here, a legitimate expectation could be shown there were three possible outcomes:
(a) The court may decide that the public authority is only required to bear in mind its previous policy or other representation... giving it the weight it thinks right... Here the court is confined to reviewing the decision on conventional Wednesbury grounds... This has been held to be the effect of changes in policy.... (b) On the other hand the court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken.... (c) Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit that is substantive, not simply procedural, authority now establishes that here too the court will in proper cases decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power....the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.235
The court acknowledged that the problem will often be deciding which category a given case fits into.236 The second category is uncontroversial. The real difficulty with
231 R v Secretary of State for Transport, ex parte Richmond Upon Thames London BC [1994] 1 All ER 577
232 R v North East Devon Health Authority, ex parte Coughlan [1999] EWCA Civ 1871; [2000] 2 WLR 622
233 R v Secretary of State for the Home Department, ex parte Zeqiri (FC) [2002] UKHL 3 and R v East Sussex County Council ex Parte Reprotech (Pebsham) Ltd [2002] UKHL 8; [2002] 4 All ER 58
234 [1999] EWCA Civ 1871; [2000] 2 WLR 622
235 Ibid at para 57, at 645
236 Ibid at para 59, p 645
this tripartite division is the distinction between category one, where the applicable standard is unreasonableness, and the third category, where the court itself will decide whether the claimed public interest justifies departure from the representation. On the facts before the court the third category was appropriate, because the promise was limited to a discrete group and the right to housing was involved. The court held that the essentially financial justifications offered did not entitle the authority to resile from the representation.237
R v Secretary of State for Education and Employment, ex parte Begbie 238 was heard a month after Coughlan was decided. Sedley LJ stated “that the distinction drawn in Coughlan ... between the first and third categories of legitimate expectation [might deserve] further examination”. 239 Laws LJ noted that both categories involve the deprivation of a substantive benefit and suggested:
As it seems to me the first and third categories explained in Coughlan are not hermetically sealed. The facts of each case, viewed always in their statutory context, will steer the court to a more or less intrusive quality of review.240
His Lordship was undoubtedly correct in suggesting that the categories each exhibit a different intensity of review, and that the facts should steer the court towards the appropriate standard. Richard Clayton, however, has criticised the two factors identified by Laws LJ as determinative; the number of individuals affected and the nature of the policy creating the expectation. Instead Clayton suggests that “... policy as such should be the decisive factor distinguishing the first from the third category”,241 and there is some support for this view in the language Lord Woolf MR used in the passage quoted above. He also suggests that this lesser standard of review is apt for ‘policy’ cases because an applicant need not show reliance on their expectation in such situations.242 The reason for this is that when the expectation claimed is based on published governmental policy:
237 It is not entirely clear from the report what remedy the court granted. In the court below the decision to close the facility was quashed. It seems a reasonable inference that this would then be used by Miss Coughlan as a bargaining tool in further negotiations with the local authority.
238 [1999] EWCA Civ 2100; [2000] 1 WLR 1115
239 Ibid at 1134
240 Ibid at 1130
241 Richard Clayton, “Legitimate Expectations, Policy, and the Principle of Consistency” (March 2003) Cambridge Law Journal, 93, at 100
242 Ibid at 102
Consistency of treatment and equality are at stake in such cases, and these values should be protected irrespective of whether there has been any reliance as such.243
Several authors have, however, noted the slight of hand involved in saying an applicant had an expectation based on something of which they were not even aware. In E v Attorney General 244 the expectation, neither subjectively entertained nor relied on, was simply that whatever policy was in force at the time should apply. Mark Elliot argues that legitimate expectation is not the correct vehicle where the applicant is unaware of the existence of a policy upon which the expectation is based:
... the unfairness in cases like Rashid245 and A246 consists not in the dashing of subjectively – and legitimately – held expectations, but in the administration’s failure to adhere to its own self proclaimed decision making norms, thereby raising the prospect of inconsistent and unequal treatment of individuals.247
Campbell notes that the very phrase expectation “suggests a subjective element, for there can be no expectation without knowledge of the undertaking”.248 Forsyth argues that the existence of an expectation is therefore a question of fact, “If that person did not in fact expect anything then, even if others did expect something, that persons expectation, being non existent, cannot be protected”. 249 Thus, cases where the applicant was not even aware of the policy at all should be decided on some other juridical basis, such as the principle of consistency.250 Otherwise, as has been noted by one New Zealand judge,251 the concept may be stretched too far. Fisher J was therefore mistaken in applying legitimate expectation in E.
243 Paul Craig, Administrative Law (5th Ed Sweet & Maxwell, 2003), 652
244 [2000] NZAR 354
245 R(Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744
246 R (on the application of A) v Secretary of State for the Home Department [2006] EWHC 526 247 Mark Elliot, “Legitimate Expectations and the Search for Principle: Reflections on Abdi & Nadarajah”, (2006) JR 281, at 282. See also Mark Elliot, “Legitimate Expectations: Procedure, Substance, Policy and Proportionality” (July 2006) Cambridge Law Journal 254, at 255 suggesting there is a strong argument for doctrinal desegregation here
248Campbell, supra n 147 at 252-253
249 Christopher Forsyth, “Wednesbury Protection of Legitimate Expectation” (1997) PL 375, at 376
250 Clayton suggests that “analytical simplicity” could be achieved if expectations generated by policy were explained on some other basis, such as the “principle of consistency” by which a public body will be held to its published policy and any inconsistency should be assessed in terms of reasonableness.
There is support for this principle in R v Home Secretary Ex P Gangadeen [1998] 1 FLR and R v Home Secretary Ex p Urmaza [1996] COD 479
251 Asher J noted that these kinds of cases fit uneasily with the concept of “legitimate expectation” in
Lalli v Attorney General unreported, HC Auckland, CIV 2006-404-00435, 27th April 2006, Asher J at para 27, suggesting there should be a need for the applicant to actually have an expectation
Nonetheless, when the applicant is aware of the policy in question but simply did not manifest any reliance on it, given the values of consistency and equality, and if the promulgation of policy is to be more than mere window dressing, the first category in Coughlan provides a useful mechanism to hold authorities to their published policy. The absence of reliance justifies applying the less intensive standard of reasonableness since there is no “pain of disappointment”. This is reinforced by the fact that policies are not rules which must be adhered to in every case; rather there remains a discretion to not apply the policy in exceptional circumstances.252
Whilst Clayton suggests that policy should be the decisive factor in the distinction, the better view may be that instead reliance should be the decisive factor. If one of the reasons a less intensive standard should be used in policy cases is the absence of reliance, then where there is reliance on a policy, surely the more intense scrutiny in category three is appropriate? There is some support for this proposition in the case law. Ex parte Khan253 is the prime example; there was a representation via a letter to the applicant about the policy applicable to the discretionary power in question (whether leave would be granted to adopt an overseas child). The applicant expected that a favourable result would be reached if the criteria were applied and in reliance on that travelled to Pakistan to effect the adoption. Leave to adopt was subsequently refused on a ground not included in the policy that had been represented. In quashing that decision Dunn LJ held that the conditions the applicant was led to expect would apply should not be departed from “without affording interested persons a hearing and only then if the overriding public interest demands it”. 254 So the applicant’s expectation of a substantive benefit could be protected procedurally, 255 and substantively, in that it could only be defeated if an overriding public interest demanded such, which is essentially the test in the third category in Coughlan. Therefore, where there is reliance on an “individualised” representation to a citizen
252 See Practical Shooting Institute (NZ) Inc v Commissioner of Police [1992] 1 NZLR 709 for a summary of the principles applicable to the application of policy. In addition see Chris Hilson, “Policies, the Non-Fetter Principle and the Principle of Substantive Legitimate Expectations: Between a Rock and a Hard Place?” (2006) JR 289
253 R v Secretary of State for the Home Department, ex parte Asif Mahmood Khan [1984] EWCA Civ 8; [1984] 1 WLR 1337
254 Ibid at 1344
255 Which fits with the comment of Lord Reid in British Oxygen Co Ltd v Minister of Technology [1970] 3 All ER 165, at 170 that a decision maker must not shut their ears to an argument that the policy
should or should not apply in the particular case.
about government policy that is then departed from, the more intrusive review in category three of Coughlan is justified.
Whilst the categorisation in Coughlan may not be completely coherent, especially the distinction between category one and three, the presence of reliance and the difference between “generalised” and “individualised” representations can usefully differentiate which is the appropriate standard of review. The third category will be limited to cases “where the expectation is confined to one person or a few people, giving the promise or representation the character of a contract”.256
Mandatory Relevant Consideration
In R (Bibi) v Newham LBC 257 Schiemann LJ suggested that the appropriate remedy should be a declaration that the “authority is under a duty to consider the applicants’ applications for suitable housing on the basis that they have a legitimate expectation that they will be provided by the authority with suitable accommodation on a secure tenancy”. 258 There are, however, shortcomings in treating an expectation of a substantive benefit as merely a mandatory relevant consideration. Such a remedy will only be useful when the authority in question has not actually taken the expectation into consideration. It cannot answer claims that the authority did not give proper weight to an expectation, “if we do employ relevancy in such cases we are, in effect, using it as a surrogate for a more direct appraisal of the public bodies actions”.259
Proportionality
The recent case of Nadarajah v Secretary of State for the Home Department 260 explicitly acknowledges the role of proportionality in legitimate expectation cases. The applicant contended that a policy should be applied to him in its original form as interpreted in the courts below. Laws LJ denied relief, but finding his judgement in that regard little short of “purely subjective adjudication”,261 sought a more principled basis for the decision. Although the concept of “abuse of power” was seemingly
256 Coughlan, supra n 234 at para 59
257 [2001] EWCA Civ 607; [2002] 1 WLR 237
258 Ibid at 252
259 Craig, supra n 114 at 623
261 Ibid at para 67
affirmed as the root of the doctrine by the House of Lords in R v Secretary of State for the Home Department, ex parte Zeqiri (FC),262 his Lordship observed:
Principle is not in my judgment supplied by the call to arms of abuse of power ... it goes no distance to tell you, case by case, what is lawful and what is not.263
In an example of classic common law rule making, Laws LJ extracts the common principle from the considerable body of case law. This he identifies as:
Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so.264
This may be said to be an aspect of “fairness” or, as Laws LJ prefers, a requirement of “good administration”. From that principle his Lordship formulates the following test to assist future judges:
Accordingly, a public body’s promise or practice as to future conduct may only be denied... in circumstances where to do so is the public body’s legal duty, or is otherwise, to use a now familiar vocabulary, a proportionate response (of which the court is the judge, or the last judge) having regard to a legitimate aim pursued by the public body in the public interest.265
Laws LJ thus makes explicit what seemed to inform the balancing test envisaged in the third category in Coughlan and in ex parte Hamble Fisheries.266 This approach has been followed in the recent cases of R (on the application of Hillingdon London Borough Council) v Secretary of State for Education and Skills,267 and formed the basis of argument in R (on the application of X) v Headteachers of Y School and another.268
There are several advantages in using proportionality to assess legitimate expectation cases. It provides a structured three part test269 which is far more precise than the ambiguity inherent in the notions of “amounting to an abuse of power”, or “so
262 [2002] UKHL 3
263 Supra n 257 at para 67
264 Ibid at para 68
265 Ibid at para 68
266 Mark Elliot, “Legitimate Expectations and the Search for Principle: Reflections on Abdi & Nadarajah”, (2006) JR 281, at 285
267 [2007] EWHC 514 (Admin), CO/3117/2006
268 [2007] EWHC 298 (Admin), CO/10461/2006
269 See R v Home Secretary, Ex Parte Daly [2001] AC 532 per Lord Steyn at para 27, for an exposition of that test
unreasonable that no reasonable authority could have reached it”.270 It also forces the authority to give reasons for its decisions, which is beneficial since it creates transparency and structure in the decision making process. 271 Furthermore the proportionality test is “capable of being applied more of less intensively”272 and can therefore accommodate the lesser standard of review appropriate in the kind of “policy” cases where there is no reliance. The test formulated is also valuable because it is derived from the principle which informs all, or at least the vast majority, of the case law. It has, however, been doubted whether his Lordship was right to suggest this test should apply equally to procedural expectation cases.273
Applicability in New Zealand
Which test a New Zealand court would use remains largely speculative, although there can be no real objection to these kinds of substantive review given the recognition that “the quality of an administrative decision as well as the procedure is open to a degree of review”. 274 At least two New Zealand judges have noted a potential nexus between substantive unfairness and legitimate expectation,275 but that is not the end of the matter. Simply labelling a decision “substantively unfair”, “unreasonable” or an “abuse of power” involves an inappropriate value judgement. The court must show why the decision is unfair, which, in the present context, will be because the fair treatment of the individual is not outweighed by the wider public interest. This is the essence of both the test under the third category in Coughlan, and the test in Nadarajah, although the later is structurally clearer. While proportionality is not yet itself a ground of review in New Zealand,276 this should not inhibit a court “develop[ing] a specific test of review for expectations cases”,277 especially given the role it has played in other areas of the law278 . In New Zealand Association for
270 Craig, supra n 114 at 622. See also Paul Craig and Soren Schonberg, “Substantive Legitimate Expectations after Coughlan” (Winter 2000) PL 684, at 699
271 Craig, supra n 114 at 622
272 Elliot, supra n 266 at 286
273 See Mark Elliot, “Legitimate Expectations and the Search for Principle: Reflections on Abdi & Nadarajah”, (2006) JR 281, at 285-287 and also Phillip Sales, “Legitimate Expectations” (2006) JR 186,
at 190-191
274 Thames Valley Electric Power Board v NZFP Pulp & Paper Ltd [1994] 2 NZLR 641 (CA), per Cooke P at 652
275 Gendall J in Northern Roller Milling Co Ltd v Commerce Commission [1994] 2 NZLR 747, at 750 and Fisher J in Thames Valley Electric Power Board v NZFP Pulp & Paper Ltd [1994] 2 NZLR 641
(CA), at 654
276 Wolf v Minister of Immigration [2004] NZAR 414, at para 25 -36
277 Schonberg, supra n 31 at 154
278 See Chapter Two under “Excessive Intrusion into the Merits”
Migration and Investments Inc v Attorney-General 279 Randerson J stated that in no case could he envisage the court granting the substantive benefit claimed.280 This, however, can be read narrowly as meaning a court will not issue mandamus to compel the authority to grant the remedy. Simply quashing the relevant decision and directing it be taken again in light of the courts conclusion is likely to suffice in most cases, whilst respecting the separation of powers doctrine.
279 [2006] NZAR 45
280 Ibid at 56, para 159
Lord Denning, with his acute sense of justice, was the first judge to attempt to justify estopping public authorities and was also the first judge to appeal to the concept of legitimate expectation. At the time of the later he perhaps did not foresee that the two concepts would blend to so as to allow citizens substantive expectations to be enforced by the courts, though he would no doubt have led the charge. That stage has now been reached in England, although the courts are still refining the approach for assessing whether it is justifiable to depart from such expectations. Thus, although originally a source of procedural protection, the doctrine of “legitimate expectation” has now evolved as a source of substantive protection.
New Zealand has accepted the former and appears to be on the verge of accepting the later principle. It has been the aim of this thesis to show that there are no theoretical objections to it doing so, and to suggest how such cases might be approached.
Before availing themselves of the concept of legitimate expectation, if an applicant can cast the representation made as amounting to a “decision”, then that will be irrevocable once communicated in terms that are not expressly provisional. New Zealand Courts have affirmed the existence of the “principle of irrevocability” and the Canadian decision of Mount Sinai shows that a promise of a favourable decision can sometimes amount to an actual decision. This principle reinforces enforcing promises which are held out by an authority as something which can be relied on.
The majority of cases, however, seem to involve “informal” representations for which legitimate expectation is the appropriate principle. There must be conduct, taking the form of an unambiguous representation to an individual or group by a public authority, giving rise to an expectation of some substantive benefit. The substantive expectation may be that a particular policy will apply to the citizen’s application. The authority must have had the power to make it, in the sense that it is not ultra vires. If it is ultra vires it cannot be enforced without harming the very concept from which the primary justification for protecting expectations derives, although other means of redress may be open. There must be reliance on the representation by the citizen, which must be
reasonable in the senses discussed above. Reliance need not be present where the expectation is based on generally published governmental policy, but it seems reasonable to require that the applicant was actually aware of the material on which the expectation is based, lest the concept be stretched too far.
Having established a legitimate expectation on the facts of the case, the court must then go onto ask whether the frustration of that expectation by a public authority can be justified. There are a variety of options open to a court at this stage, none of which a New Zealand court should be inhibited from adopting given the recognition that the “quality of an administrative decision as well as the procedure is open to a degree of review”. If the decision maker has not considered the fact a citizen entertained a legitimate expectation in making their decision, then the decision can simply be quashed with a direction to reconsider the matter, this time treating the expectation as a mandatory relevant consideration. However this approach cannot avail the applicant who claims that insufficient weight has been given to the expectation. In these circumstances the court itself must decide whether the denial of the expectation is lawful.
One option, following the categorisation in Coughlan, would be to ask whether the denial of the expectation was so unfair as to amount to an abuse of power. Here the court must balance fairness to the applicant with the vindication of some aim in the public interest. The less intrusive “reasonableness” standard in the first category is appropriate where the applicant has not relied on the representation in question. A similar approach would be to ask whether the denial of the expectation is a proportionate response, having regard to a legitimate aim pursued in the public interest. This has the benefit of presenting a structured process of reasoning and although not itself a ground of review in New Zealand, there can be no objection to using proportionality as a test specifically for expectation cases.
The uncertainty over the status of substantive expectations in New Zealand needs to be resolved. The arguments against enforcing expectations are not strong enough to completely deny the existence of such a principle. Although some Judges, recognising the particular moral force of a promise and the threads of the principle in Court of Appeal and Privy Council precedents, have supported enforcing expectations against
public authorities, they have done so “by instinct rather than reason”. It has been the aim of this thesis to show that reasoned arguments can be constructed within the framework of judicial review to hold public bodies to their assurances, whilst respecting the indisputable need to allow departure where an overriding public interest compels it.
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